Fight the Right Action Kit
Civil Rights, Special Rights; and Our Rights
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by Suzanne Goldberg, Lambda Legal Defense and Education Fund
The following is the edited text of a speech given by Suzanne Goldberg of
Lambda Legal Defense and Education Fund at a Fight the Right Regional
Conference organized by the National Gay and Lesbian Task Force Policy
Institute in conjunction with the Lambda Legal Defense and Education Fund,
Equality Colorado, and Ground Zero in Denver, Colorado in March, 1993.
Don't be fooled by the "special rights" rhetoric of the religious right
wing. There is something legally wrong with initiatives seeking to limit
civil rights protections to exclude sexual orientation-based discrimination
or create a situation in which gay and lesbian citizens have lesser rights
compared with other citizens.
The religious right wing's campaign of misinformation has very effectively
manipulated public understanding of civil rights and anti-discrimination
law. Right wing initiatives and referenda are both an attack against civil
rights and attempts to further manipulate public understanding of civil
rights. This makes a thorough knowledge of the constitutional issues
raised by anti-gay initiatives especially important. Knowledge about civil
rights is a key tool for building successful organizing and educational
campaigns to defeat right wing attacks.
Although right wing initiatives are often promoted through vicious
anti-lesbian and gay rhetoric, the ballot question presented to voters on
election day doesn't ask whether voters like gays and lesbians. Rather, the
question is: Do you want to amend your constitution or city charter and
restructure the legal foundation of government and its promise of civil
rights for all people? In organizing anti-initiative campaigns and in
responding to right-wing rhetoric, it is critical to keep focused on this
point. Remember, this is not a lesbian and gay popularity contest, it is a
vote on restructuring the government.
As we organize our campaigns against right-wing ballot initiatives and
formulate responses to their rhetoric, it is critical that we review the
basic issues at the root of the debate.
For our purposes, civil rights are the rights guaranteed by law. These
rights are guaranteed to U.S. citizens and in many cases also cover
non-citizens who live or work in the US. What is often referred to as the
Civil Rights Movement actually focused on one aspect of civil rights,
protection against race-based discrimination.
Different governmental bodies provide varying degrees of protection from
discrimination on the basis of sexual orientation:
>> The U.S. Constitution guarantees "fundamental" rights to all. These
include, for example, freedom of speech, association and religion as well
as a guarantee of the separation between church and state. The First
Amendment to the U.S. Constitution sets these guidelines:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
>> A state constitution guarantees fundamental rights for the citizens
and residents of each state. State constitutions are generally similar to
the U.S. constitution. Sometimes they provide more protection for citizens.
They cannot provide less or violate the U.S. constitution.
>> Federal civil rights laws provide specific protections against
discrimination in a wide range of areas including employment, housing and
public accommodations. These laws prohibit discrimination based on race,
gender, national origin, ethnicity, age, disability, and some other
characteristics.
There is a bill in Congress to prohibit discrimination based on sexual
orientation, but it has not yet passed. A federal civil rights law that
prohibited discrimination based on sexual orientation would stop most of
these initiatives in their tracks, our collective attention and effort to
push for passage of this legislation is critical.
>> State civil rights laws are similar to federal civil rights laws and
often protect against other forms of discrimination as well (e.g. marital
status). Eight states and Washington, D.C. have laws that prohibit sexual
orientation discrimination in a variety of areas, including housing,
employment, and public accommodations. Several other state legislatures are
considering similar legislation in 1993.
>> Local civil rights ordinances (sometimes called human rights
ordinances) are similar to state and federal civil rights laws and often
protect against an even wider range of discrimination (e.g. political
beliefs, etc.)
With all this information in hand, it is also important to know what civil
rights are not about. You do not have a right to have a job or housing. You
do have the right not to be discriminated against for an illegal reason (a
reason prohibited by law or the constitution).
So what are "special rights?" Actually, no such "rights" exist. In their
initiatives, the religious right defines special rights to include:
minority status, affirmative action, quotas, and special class status.
However, these terms do not have a legal meaning in the way the religious
right uses them. Minority status and special class status are not legal
rights. Affirmative action (sometimes misdescribed as "quotas" for hiring
people who fit certain demographic categories) is a remedy, not a right.
Affirmative action is a remedy for a historical pattern of discrimination.
Where an affirmative action plan is in place, it is not supposed to be
permanent; the goal is to remove the vestiges of discrimination, not to
give some sort of "special right" to certain people.
If "special rights" don't really exist, what then is wrong with the
initiatives that seek to prohibit states from banning discrimination based
on sexual orientation?
The U.S. constitution guarantees all people equal protection of the law.
This means that a state cannot single out one group of people and treat
them differently without a compelling reason for doing so.
The initiatives would require a state or local government not to respond to
the complaints of lesbians, gay men, and bisexuals about discrimination
against them because of their sexual orientation. Any other group could
bring its complaints to the government and try to obtain protection.
Because the initiative would bar the government from responding to
lesbians, gay men, and bisexuals only, the initiative changes the entire
political process and burdens the political participation of lesbians, gay
men, and bisexuals. It requires the government to treat gay and lesbian
people differently from all other people.
Even if an initiative prohibited a state from protecting anyone from sexual
orientation-based discrimination (including heterosexuals), the burden of
that prohibition would fall on the people with a minority sexual
orientation (lesbians, gay men, and bisexuals) and would therefore violate
the constitution's guarantee of equal protection.
Finally, it is important to remember that these initiatives target
identity, not conduct. Even when an initiative focuses on lesbian and gay
conduct or behavior, its effect is to prohibit protection against
discrimination. When someone is fired for being lesbian or evicted for
being gay, the firing or eviction is almost never tied directly to that
person's conduct. Rather, we are targeted for discrimination and sometimes
violence because of who we are, lesbian, gay, or bisexual, and what others
assume we will do on that basis.
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To request the complete Fight the Right Action Kit, call NGLTF at
202-332-6483, TTY 202-332-6219.
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